March 22, 2005

Yesterday, the California Medical Association passed an “emergency resolution” condemning Congress for intervening in the Schiavo case. The Association’s 1,000-member “House of Delegates” happened to be having its annual convention March 19-21, and passed it on a voice vote, with only one member objecting. (Was that one immediately deprived of his lunch ticket? Just kidding…)

Another member said that Congress was “extending Mrs. Schiavo’s suffering and violating not only her wishes but also her relationships with her physicians who have long maintained that she will not recover.”

This drips with hypocrisy on two counts:

First, since they simultaneously claim that since she’s in a “persistent vegetative state” that she feels no pain and will not suffer from starvation or dehydration. If she can’t suffer from starvation, how can she suffer from nutrition? If she can’t suffer from dehydration, how can she suffer from hydration?

Second, if she’s been unconscious or in a “persistent vegetative state” since these physicians started treating her, how can she be said to have a “relationship” with them?

I’ve always been puzzled by the notion that medical doctors have some special expertise when it comes to making ethical decisions. Doctors are trained, licensed, and chosen for their knowledge of a body technical information and various related skills — how the human body works under various conditions, how diseases can impact it, what types of information are needed to diagnose diseases, and what procedures, devices and drugs can be used to treat diseases and improve body functions. The human body is extremely complex; this is indeed an impressive body of information and skills that must be acquired. To acquire these skills requires lots of hard work and considerable intelligence, not to mention physical endurance (given the hours of medical residencies).

However, it does not require any particular level of ethical wisdom or insight. Being an ethically good person will not guarantee an easy path through medical school, residency, and board exams — nor will being an evil person make it any harder. In short, there is no reason to believe that the average physician is any more or less ethical than the average electrician. You would not dream of asking your average electrician what you should watch on TV just because he knows all about the voltage and amperage required to operate your TV — yet some people think we should defer doctors, or committees of doctors, on questions of who should live and who should die, just because they (sometimes) know how to make either one happen.

Over their four years in medical school, medical students take a course or two in something called “medical ethics” or sometimes “bioethics.” The term seems to imply, “ethical issues that arise in medical situations,” which would imply that it’s a subset of ethics, not medicine. Viewed this way — i.e., correctly — it involves taking some agreed-upon ethical system and applying that system’s principles to questions that arise in a medical context. The agreed-upon ethical system could be a religion, or perhaps some secular substitute for religion, say, a list of agreed principles of right and wrong. But most medical schools take students from a variety of backgrounds, with a variety of religious and non-religious outlooks, without regard to their ethical values (as long as they don’t get caught cheating on their MCATs or undergraduate exams). Medical students may be religious or secular, Catholic, Protestant, Jewish, Muslim, Hindu, atheist or indifferent; they may have highly developed notions of right and wrong, or they may thing “right” is whatever you can get away with.

In short, there is basically no way to teach a medical ethics class in medical school that is actually about medical ethics, since you can’t count on the students agreeing on the ethics.
But they have to teach the class anyway, since “everyone knows” doctors are supposed to be ethical. And they have the course taught by doctors, which implies that it’s a subset of medicine independent of anyone’s religious or secular ethical systems, or by “bioethicists,” which implies it’s a subject unto itself, based on neither morality nor medicine.

They do of course have a list of basic principles, but the list is implicit, since if they listed them the vast majority of the public — and probably the medical students — would not accept them. They basically agree that it’s OK to allow the very young (newborns or fetus) or the very old to die if treatment will be difficult, expensive, or have a probability of success below some unstated threshold. They agree that life with physical or mental handicaps is not as worth living as life without them — and thus, an otherwise healthy person takes precedence over a person who is physically or (especially) mentally handicapped in some way. And, above all, they agree that it is the doctor’s job to convince the patient and/or family members to go along with the recommended decision, notwithstanding any moral, religious, or personal beliefs that patient or family might have. And they agree that the general public ought to defer to doctors on these issues.

Obviously, not every doctor believes all those things — in fact, I suspect most don’t. But most of the ones who teach or write about medical ethics do.

Yesterday, the California Medical Association passed an “emergency resolution” condemning Congress for intervening in the Schiavo case. The Association’s 1,000-member “House of Delegates” happened to be having its annual convention March 19-21, and passed it on a voice vote, with only one member objecting. (Was that one immediately deprived of his lunch ticket? Just kidding…)

And today, the New England Journal of Medicine put two articles on “early release” on its web site (they will appear in the April 21 issue). They purport to take a balanced view on the issue. The represent “two opinions” — the opinion that Terri’s feeding should be removed, and the opinion that Terri’s feeding should not be continued. In short, they’re almost as unbiased as Dan Rather.

It’s only a matter of time until “DNR” (“Do Not Resucitate”) becomes required for everybody. In fact, it might not even be a matter of time — it may already be the case.

About a year ago, I went to a hospital for a simple outpatient surgical procedure (removal of a ganglion cyst from my wrist. When I checked in, I was asked to sign a DNR order. Correction: I was not exactly asked. I was given a stack of papers and told to sign all of them. One of them was a DNR order. I am the pedantic type, who doesn’t like to sign anything without reading it. So, much to the admitting clerk’s annoyance, I kept her waiting while I flipped through all the documents and read the ones I didn’t recognize. When I got to the DNR order, I said I didn’t want to sign it. She said I had to sign everything. I asked if I had to have a DNR order to get the surgery. She said no — but that I had to sign the form anyway. So, I crossed out all the paragraphs authorizing them the withhold treatment and so on, wrote “SAVE ME AT ALL COSTS” in capital letters, and signed under that sentence rather than on the signature line.

Two questions:

How many patients sign those forms without bothering to read them, thus authorizing DNR and withholding of medical treatment without even knowing it? I’ll bet it’s almost all of them, since most people don’t read what they sign, and the annoyance of the clerk at the delay clearly indicated she wasn’t used to people reading them.

Given that they get “everybody” to sign these things, what are the chances that, if a situation had come up, they would bother to check the file for my form to make sure I’d signed it, discover I didn’t want a DNR, and decide to abide by my wishes — all in the four minutes it takes for brain damage to set in? I doubt it — everyone in a hospital is busy, and they don’t have time to even check to see if you have a special request. So, they treat you like you have a DNR, even if you explicitly asked for the opposite.

Terri Schiavo is not dying–except by the actions of the courts. She is clearly incompetent. She can’t talk. She can’t walk. She can’t take care of herself in even the most basic elements of bodily hygiene. Neither can a six month old baby. Would we allow a mother or father to starve their baby to death? Of course not. It would be child neglect, at least. Preventing someone else from feeding that child would lead to charges more serious than neglect.

National Review Online has posted a PDF copy of the federal judge’s ruling. MSNBC has posted the text. I only had a chance to skim through it, but basically it says that the request for food and water meets every requirement for a temporary restraining order (“irreparable injury,” etc.) except the requirement for “substantial likelihood of success on the merits.”

He even acknowledges that:

It is apparent that Theresa Schiavo will die unless temporary injunctive relief is granted.

The last paragraph says:

This court appreciates the gravity of the consequences of denying injunctive relief. Even under these difficult and time strained circumstances, however, and notwithstanding Congress’ expressed interest in the welfare of Theresa Schiavo, this court is contrained to apply to the issues before it. As Plaintiffs have not established a substantial likelihood of success on the merits, Plaintiffs’ motion for Temporary Restraining Order must be DENIED.

Let’s translate this from legalese into English: “I know she’s going to die, and Congress does want her to, but the LAW SAYS SHE MUST DIE!!!!!!!”

I’m not a lawyer, so while I can explain why this decision is distasteful, I can’t explain entirely why it’s legally wrong. Fortunately, however, Hugh Hewitt can. If you’ve heard of Hugh Hewitt, you probably know that he’s a blogger and a radio talk show host, but he is also a licensed attorney, a former Special Assistant to the Attorney General of the United States, and currently is a Professor of Law at Chapman University. He explains on his blog why this ruling is wrong. If you’re at all interested — and certainly if you’re a lawyer or law student — you should read Professor Hewitt’s entire post. But here is on excerpt anyway:

It was clearly the intention of Congress that Terri receive nutrition and hydration throughout the course of a “de novo” trial on the merits of her claim. …

… Tom Delay, in the Sunday press conference where this was announced, stressed that the legislation had been crafted to get Terri back on hydration and nutrition pending a de novo review of the facts in federal court. Judge Wittemore is wrong to rely on other precedents when the Congress gives such an explicit charge.

At a minimum, Judge Wittemore ought to have ordered resumption of hydration until the 11th Circuit and, if necessary, Supreme Court appeals are heard. Convicted felons don’t get executed until all the appeals are heard. Their executions are stayed even when they haven’t got a prayer of a chance of success. Not so in this setting. And that is what is so shocking.

But then again, the Florida court long ago established that Terri Schiavo does not have the same rights as convicted murderers. In fact, if she were a convicted murderer, the state be required to go to great lengths to keep her alive until her scheduled execution.

I criticize the decision in the post below because Congress and the president clearly intended a different standard to govern the granting of injunctive relief in this circumstance. I should also have noted that the courts have applied different standards for the granting of preliminary injunctions in different situations –when Congress so intends it.

On such category of special cases is the case where harm is alleged to be imminent to an endangered plant or animal, like the Riverside Fairy Shrimp, the Delhi Sands Flower-loving fly, the Stephens Kangaroo rat, or, yes, Munz’s Onion –a genuine vegetable as opposed to the horrific term that has been thrown around in this case.

(2005-02-19) — The U.S. Fish and Wildlife Service (USFWS) has, at least temporarily, saved the life of Terri Schindler-Schiavo, the Florida woman whose former husband, Michael, had planned to disconnect her feeding tube on Tuesday.

The 11th-hour reprieve came in response to a plea from the Schindler family to have Terri classified as a silver rice rat (Oryzomys argentatus), considered an endangered species by the state of Florida and the USFWS.
…
“If we can apply to get Terri classified as a different endangered species each month, we can give her several more years of life,” Mr. [Randall] Terry said. “I know it sounds dehumanizing, but under our laws a rat has more of a right to life than this woman.”

Here is yet another example of someone who was diagnosed as a “vegetable” but recovered — in this case, completely — to resume a productive life. I’m posting an excerpt, but if you have a few minutes read the whole thing.

My husband was in EXACTLY the same situation after suffering cardiac arrest while in the hospital and suffered anoxic encephalopathy, in fact, 3 separate times. First, they gave him 2 hours to live and told me to call our priest.

He was in a coma and was much worse off than Teri – he had it ALL, ventilator, feeding tube, catheter, then trach. He couldn’t breathe off the ventilator for more than 5 minutes at a time. …

The doctors said if he lived, he would likely be a “vegetable”, the social worker called me into a meeting and told me to start looking at nursing homes. His family fought me tooth and nail to pull him off of the ventilator, he was also on a feeding tube- which I refused to do. The neurologists were so convinced & insistent that my husband was severely brain damaged from his anoxic episodes, they insisted on testing him in front of me.

They would keep saying “honey, I know you want to believe he’s responding, but he’s not, he is in a persistent vegetative state.”
…That was 9 years ago and if you didn’t know, you would never know anything happened to him. He lost a tiny bit of feeling in his left hand and a slight loss of peripheral vision in his left eye. He is mentally exactly like he was when he was admitted and he has had [so far] 9 very happy, very active, fulfilled, loving years. Just imagine if I had pulled him off life support when his family demanded it.

I don’t know if they can appeal this ruling, since the judge still hasn’t held a trial. My guess: The judge is trying to run out the clock, hoping Terri will die before (a) he has to make a final decision and (b) his decision can be appealed and reversed. If he delays a final decision until she dies, then he won’t be reversed because the appeal will be moot. Federal judges are notorious for going to all sorts of lengths to prevent their decisions from being reversed. It’s a matter of professional pride for them, like athletic records.

It’s possible I’m wrong and that the pre-trial denial of an emergency injunction could be reversed. I certainly hope so.

UPDATE (3/22/05) 11:35am ET: Fortunately, I was wrong. The denial of the temporary injunction has been appealed to the 11th Circuit Court of Appeals in Atlanta.